How Founding Fathers helped argue the health-care case at the Supreme Court

US Supreme Court justices probably don’t believe in ghosts, but in the extraordinary arguments conducted this week at the high court could be heard the voices of the Framers of the Constitution.

It wasn’t just Solicitor General Donald Verrilli, or Washington lawyers Paul Clement and Michael Carvin, at the lectern before the assembled justices.

With them in a courtroom crowded with members of the Senate and House, scholars, and lawyers were some of the most outspoken leaders of the founding generation.

If one listened closely their spirit was unmistakably present. With Mr. Verrilli stood Alexander Hamilton, a New Yorker, Treasury secretary, and champion of a national government powerful enough to shape its economic future.

With Mr. Clement and Mr. Carvin stood James Madison and Thomas Jefferson, both presidents, Virginians, and champions of an experimental form of self-rule in which the national government would be limited to specific areas of nationwide concern, leaving most power to the states and to the people.

To be sure, the case on Tuesday involved the constitutionality of President Obama’s health-care reform law – specifically its mandate that all Americans purchase a government-approved level of health insurance or pay a penalty.

But it was also about something more fundamental, a fierce clash of ideas, dangerous enough to spark a civil war, and as old as the nation itself.

It involves conflicting visions of the constitutional structure of the government – the proper balance of power between the national government, the states, and the people.

Among the justices of the Supreme Court today this debate is most recognizable in the contrasting views of Justices Stephen Breyer and Antonin Scalia.

In Tuesday’s argument, Justice Scalia asked the solicitor general how the federal government’s assertion of a power to order Americans to buy health insurance comports with a constitutional system that requires a federal government of defined, enumerated powers.

“The federal government is not supposed to be a government that has all powers … it’s supposed to be a government of limited powers,” Scalia said.

“That’s what all the questioning has been about,” he told the solicitor general. “If the government can do this, what else can it not do?”

Verrilli said the government was not claiming a broad power to order Americans to buy a commodity like broccoli or a cellphone, it was just regulating the existing health-care market.

Hoping to assuage concerns of the conservative justices, Verrilli said the federal government did not have the power to create commerce that did not previously exist by ordering Americas to engage in a commercial transaction so the resulting commerce could be regulated.

Justice Breyer disagreed with Verrilli’s narrower construction. “I thought the answer to that was, since McCulloch versus Maryland, when the court said Congress could create the Bank of the United States, which did not previously exist, [and who’s] job was to create commerce that did not previously exist, since that time the answer has been, ‘Yes.’ ”

Breyer’s reference was to a landmark 1819 Supreme Court decision. In McCulloch v. Maryland, the court was faced with the difficult task of deciding whether Congress had the power to create a national bank. The bank’s biggest advocate was Alexander Hamilton, who identified a critical need to help bolster the young nation’s struggling economy.

The problem, recognized by Thomas Jefferson, James Madison, and others, was that there was nothing among the enumerated powers granted to the federal government in the Constitution that specifically authorized Congress to create such a bank.

A constitutional government should strictly follow the letter of the Constitution or amend it, not read into it measures that might be deemed useful, opponents of the bank argued.

Chief Justice John Marshall sided with Hamilton, establishing a broad framework for national power that continues in force to this day. It was true that nothing in the Constitution specifically granted the authority, but neither did the Constitution forbid it. Chief Justice Marshall said creation of the bank was authorized under the Constitution’s Necessary and Proper Clause.

The clause grants Congress the power: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Marshall acknowledged that the national government’s powers were constrained, but in the next stroke of his pen he swept those constraints away.

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended,” the chief justice wrote. “But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”

In simpler terms, Marshall was saying in this last passage that Congress could do what it needs to do to achieve its aims.

In defending the law, the solicitor general cited Marshall’s broad reading of the Necessary and Proper Clause, as well as the high court’s broad reading of congressional power to regulate matters substantially affecting interstate commerce.

In contrast, Clement and Carvin, the lawyers for those challenging the health-care reform law, faced a steeper challenge. They had to convince a majority of the nine justices to do what Chief Justice Marshall and many subsequent members of the high court have so far declined to do.

Every decision upholding broad assertions of national authority have included an acknowledgment that the national government operates under limited powers that must not be transcended.

But as Appeals Court Judge Jeffrey Sutton said in a concurring opinion last year upholding the constitutionality of the reform law: “The court should either stop saying that a meaningful limit on Congress’ commerce power exists or prove that it is so.”

Such a ruling would be historic, a landmark. But how does a lawyer get the high court to consider making history?

Clement’s strategy appears to have included enlisting the help of more than a few Founders.

The lawyer turned a question about Congress’ taxing power into an anecdote about a 1794 debate between – who else? – Hamilton and Madison over whether a tax on carriages was constitutional. (Madison believed it invalid; Hamilton felt it was permissible.)

Clement went on to opine that the two Founders would have rejected the individual mandate.

The tactic deftly diverted the debate away from the complex details of federal health care as it exists in 2012 and whisked the court effortlessly back to 1794. 

“I have little doubt that both of them would have agreed that a tax on not having a carriage [like not having health insurance] would clearly have been a direct [and unconstitutional] tax,” he told the justices. “I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.”

Upon hearing the invocation of Madison and Hamilton, Justice Breyer returned to the national bank case, McCulloch v. Maryland.

“I think if we look back into history we see that sometimes Congress can create commerce out of nothing,” he said. “That’s the national bank which was created out of nothing to create other commerce out of nothing.”

Breyer recounted the long history of the Supreme Court upholding an expansive reading of Congress’s commerce power, including the federal regulation of home-grown wheat for farm-bound livestock.

“I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act,” Breyer said.

Clement replied that if the facts of the health-care law’s individual mandate were applied to the national bank case it would involve not just creation of a bank but also Congress ordering every citizen to deposit their money in the national bank to boost its solvency.

“I think the Framers would have identified the difference between those two scenarios,” Clement said. “And I don’t think that the great Chief Justice [Marshall] would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”

In his rebuttal, Verrilli offered a different perspective on the national bank case. Under McCulloch v. Maryland, Chief Justice Marshall left it to the democratically accountable branches of government to choose the means to address difficult national problems like health care, he said.

“This is actually a paradigm example of the kind of situation that Chief Justice Marshall envisioned in McCulloch itself,” Verrilli said. “That the provisions of the Constitution needed to be interpreted in a manner that would allow them to be effective in addressing the great crises of human affairs that the Framers could not even envision.”

Legal analysts following the case say the five justices on the court’s conservative wing appear prepared to strike down the individual mandate and perhaps significantly more of the reform law.

But it remains unclear whether they will take up the larger, historic challenge laid down by Judge Sutton.

A decision in the case, Department of Health and Human Services v. Florida (11-398), is expected by late June.